Court of Appeal reduces sentence for sexual offences by applying statutory mitigation and totality principle.

APPROVED JUDGMENT NO REDACTION NEEDED

THE COURT OF APPEAL Record No: 315/2024 Charleton J. Neutral Citation No: [2025] IECA 296 Edwards J. Burns J.

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL JUSTICE ACT 1993 BETWEEN/ THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

APPLICANT V D.R.

RESPONDENT

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 18th day of December, 2025.

Introduction

1. This is an application brought by the Director of Public Prosecutions (i.e., “the applicant”

or “the Director”) pursuant to s. 2 of the Criminal Justice Act 1993 (“the Act of 1993”) for review of the sentence imposed on D.R. (i.e., “the respondent”) by the Circuit Court on grounds that it was unduly lenient.

2. The respondent was charged on indictment with 26 counts alleging sexual offences and entered pleas of guilty in respect of two counts of indecent assault contrary to common law and as provided for by s. 10 of the Criminal Law (Rape) Act 1981 (Count No’s 1 and 6), and three counts of indecent assault contrary to common law (Count No’s 8, 11 and 26). These pleas were entered on the 16th of July 2024, the proposed date of trial, on the understanding that evidence at sentencing would be led on a full facts’ basis.

3. The respondent was sentenced to three years imprisonment on Count No 1; three years imprisonment on Count No 6; nine months imprisonment on Count No 8; one year and six months imprisonment on Count No 11; and one year and six months imprisonment on Count No 26. The sentencing judge imposed the sentences on Count No’s 26 and 11, which related to a male victim A.M., to be concurrent inter se, with Count no 8 which related to another male victim, P.M., imposed consecutively upon their lawful expiration.

Further, the sentences imposed on Count No’s 1 and 6, which related to a third female victim, H.D., were made concurrent inter se, and consecutive upon the lawful expiration of the sentence imposed on Count No 8. The total or cumulative sentences imposed on the respondent against the three complainants amounted to 5 years and 3 months imprisonment.

4. By a Notice of Application for Review of Sentence lodged the 3rd of December 2024, the Director has advanced five grounds in support of this application:

1. “The sentencing judge imposed a sentence which did not adequately reflect the gravity of the offence committed.

2. The court erred in principle in respect of the headline sentences pronounced.

3. The sentencing judge placed insufficient weight on the aggravating factors present.

4. The sentencing judge erred in the wight attached to the mitigating factors in this case.

5. The sentencing judge erred in placing each offence in the mid-range on a scale of gravity.”

The Evidence Adduced at Sentencing

5. At the sentencing hearing of the 19th of July 2024, a D/Garda Pat Prendergast gave evidence in relation to the factual background to the commission of these offences.

6. The evidence was that three siblings were the victims of sexual offending by the respondent during their childhood. The respondent was a neighbour’s child who lived nearby to the complainants’ home and had been hired as a farm labourer by the complainants’ father.

First Named Complainant (H.D.)

7. D/Garda Prendergast confirmed that H.D. had given a statement to An Garda Síochána on the 25th of February 2019 relating to historic sexual abuse against her by the respondent.

H.D. outlined that the respondent was a neighbour’s child who resided in close proximity to her house.

8. D/Garda Prendergast confirmed that H.D.’s statement covered offences of digital penetration of her vagina and masturbation. H.D. described a series of indecent assaults by the respondent that commenced when she was 4 years of age and continued until she was approximately 9 years of age. The respondent is 17 years older than H.D. The complainant stated that she was unsure of the timeline of these indecent assaults, but she did definitively pinpoint that she was sexually abused around the time the respondent’s father passed away (which she explained was sometime in 1987 before her 7th birthday). H.D. stated that she had gone with members of her family to the respondent’s family home and while there she described that the respondent inserted his fingers into her vagina.

9. H.D. described eight different occasions when she was sexually assaulted, and six in particular where the respondent placed his finger or fingers inside her vagina. She further described two variations of the type of abuse which were outlined; on one occasion she stated that the respondent grabbed her hand and used it to masturbate himself and, on another occasion, he placed his hand over her mouth and inserted a finger or fingers into her vagina.

10. H.D. made disclosures detailing these offences to a number of people over the course of the years. She first disclosed the offending to her brother A.M. (“the third named complainant”) after he had made enquiries with her concerning the respondent. A.M.

informed their parents of the respondent’s abuse against H.D. and himself, and their father (who is now deceased) effectively informed the respondent’s parents that he was no longer welcome in their home. H.D. recalled making disclosures to a number of other family members, including two of her school friends and her local GP.

11. The respondent was arrested in relation to these offences in January 2020 and interviewed. Nothing of evidential value arose from this.

The Second Named Complainant (P.M.)

12. P.M. first reported abuse allegations to a Garda Michael Gleeson in 2010. He later stated that he did not wish to continue with the investigation as he did not want to “trouble the family and neighbours” or have them interviewed by gardaí. Following H.D.’s statement to the gardaí, P.M. decided to report his allegations also.

13. P.M. identified three occasions of indecent assault upon him by the respondent, including on his holy communion day in April 1980 where he described the respondent rubbing his penis on his genitals until he ejaculated. He described two other occasions, at two separate locations, where the respondent rubbed his penis on his genitals until he ejaculated.

14. P.M. was seven years of age at the time of offending. Following matters being reported to An Garda Síochána, the respondent was informed of P.M.’s allegations, but declined to be interviewed in relation to them.

The Third Named Complainant (A.M.)

15. A.M. is the eldest of the three children, with a date of birth in 1971. In a statement made to gardaí he described that he had been indecently assaulted by the respondent at three separate locations, and that the assaults began when he was 6 or 7 years of age.

16. A.M. described that the respondent would begin by feeling his genitals outside of his clothing, before pulling down his trousers and feeling his penis. He described that the respondent would then pull down his own trousers and underwear, lie on top of A.M. and rub his penis up and down on him until he ejaculated.

17. A.M. described this abuse as continuing for three to four years. Following matters being reported to An Garda Síochána, the respondent was informed of A.M.’s allegations and again he declined to be interviewed in relation to them.

18. D/Garda Prendergast asserted that there had been no powers of arrest available to gardaí in relation to the offences involving P.M. and A.M.

Victim Impact Statement

19. The first named complainant (H.D.) prepared a poignant victim impact statement which she read into evidence at the sentencing hearing. On account of its length, we do not intend to reproduce it in full, but will attempt to provide a précis instead.

20. The complainant started by describing that the respondent’s offending has made her feel “dirty, disgusting, cheap, tainted, like used goods”. She described that her “six-year-old vagina was digitally penetrated on several occasions” by the respondent. She described that she can still feel the pain of where his fingernails pierced the inside of her vagina.

She recounted the respondent laying on top of her in a field, crushing her lungs with his weight and covering her mouth with his own, which has resulted in her now having “problems breathing normally”. She detailed how the respondent forced her to masturbate him, describing this as her worst memory of the offending.

21. She detailed the impact that the offending had on her. She described how her academic performance declined while she was in 6th year of secondary school, that she was barely eating and sleeping all day. She outlined that she confided in a school social counsellor about the sexual abuse and was referred to a psychiatrist by her local GP. She was prescribed Prozac and sleeping tablets at 17 years of age. The complainant detailed that in her adult years the old trauma resurfaced with the pressure of work, when she sat her professional exams and in any time of stress thereafter.

22. As regards her relationship with her husband, the complainant describes how her suffering had a manifest impact upon her marriage. She described that at one stage her marriage was in jeopardy as she “was so numb and paralyzed by this trauma” that she was unable to show her husband any affection. She outlined that she suffers a “huge psychological fallout” if her husband places his hand on her knee while driving.

23. Her suffering had a manifest impact upon her children. She describes that while the birth of her children has brought immense joy to her life, as her daughters reach the age she was when she was sexually abused by the respondent, she suffers horrific memories and flashbacks. She described that she was anxious that she would be unable to conceive as a result of the offending, and also that she was fearful during her three pregnancies that her children would be born with birth defects. She states that it is only in recent years that she has processed the trauma of being unable to have a vaginal birth on any of her children. She details that this was due to her not wanting her children to “pass through that tainted part of her body”. She described feeling immense guilt “for not being the mammy I could be and should be” to her three children.

24. She detailed that she has a phobia of snakes and attributes this as being a sequela to the incident in the lane when the respondent forced her to masturbate him. She described seeing snakes alongside the respondent’s face when she tried to sleep. Further, she described developing food aversions in the months prior to the sentencing hearing. She outlines panicking when cutting beef, eating salmon, strips of peppers, and long baguettes.

25. The complainant detailed that she has been attending a physiotherapist since 2022 to treat a deep-rooted trauma to her neck, which is due to her holding a constant fighting or protective position.

26. She described that this legal process has been ongoing and looming throughout family occasions; a pandemic; a move from Germany to Holland; and her third pregnancy. She outlined that she has engaged in psychotherapy, physiotherapy, deep breathing classes, running, kick boxing sessions and sea swimming in an attempt to “survive” the impact of the offending and the legal process.

27. The complainant acknowledged that while the respondent’s guilty plea had spared her from giving evidence, it did not relieve her “anguish” of living with the crime. She opined that the plea of guilt could have been offered five years ago, which would have spared them all a lot of pain. She described that the past five years had put a substantial strain on her relationship with her two brothers, as they had each been at different stages of grieving and healing from the offending.

28. As regards her faith, the complainant stated that the effects of the sexual abuse has impacted her faith in ways far deeper than whether she can forgive the respondent or not. She described feeling unworthy of standing before the alter on her wedding day.

29. She concluded her victim impact statement by describing the lasting and damaging effect the respondent’s offending has had on her life. The complainant stated:

“It has influenced the way I think and feel about myself, lowering my level of self-worth, making me tell myself over and over again that I'm a worthless piece of the dirt. I live a life where how I feel on the inside is totally different from how I appear on the outside. This is very conflicting for me. I'm very honest person, it feels dishonest. It is hard to open up to people; it influenced my level of intimacy with the people who are closest to me. All my life I have pushed forward, tried to suppress the emotions, tried to move on from the flashbacks. Push, push, push, no looking back. I thought I had dealt with my trauma during therapy, especially when my children were younger. I was wrong. This wasn't dealing with trauma, this was just basic survival. In recent weeks, with the mounting pressure of the trial, I have finally accepted that this sexual abuse is part of me. It is who I am, it is what I've become, and I am who I am because I was abused. I will never be unabused, I am a victim, the abuse broke me. I thought I was much further along the road to recovery and healing, but it turns out I have been running in the opposite direction. I cannot keep running, but memories cannot be erased and damage cannot be undone, and the road to healing is paved with both. I'm embarrassed and ashamed standing here today.”

30. Both P.M. and A.M., as was their entitlement, opted not to give victim impact evidence or to provide victim impact statements.

Personal Circumstances of the Respondent

31. The respondent was 61 years of age at the time of sentencing, and he was between 16 and 27 years of age at the time of offending.

32. D/Garda Prendergast confirmed that the respondent has one previous conviction for driving under the influence of an intoxicant, for which he received a fine of €300 and a disqualification order for two years.

Psychologist’s Report

33. A psychologist’s report prepared by a Dr. Patrick Randall on the 31st of October 2024 was before the sentencing court. The report details that the respondent suffers from asthma and that the respondent had outlined that he has suffered two panic attacks since his arrest.

34. The report states that the respondent outlined that he has never had a steady job, since he dropped out of school at 13 years of age due to bullying. It details that he has been in receipt of disability payments as an adult, and that he has intermittently worked odd jobs on a neighbouring farm. The respondent worked as a farmhand on the farm of the complainants’ family.

35. The report details that the respondent was assessed as to his cognitive functioning, and that his overall cognitive ability was scored in the ‘extremely low’ range of intellectual functioning as measured by the Wechsler Adult Intelligence Scale – Fourth Edition (“WAIS-IV”). His overall thinking and reasoning abilities were deemed to be exceeded by 99% of adults his age.

36. The report outlines that the respondent scored ‘Below Average Risk’ on the Static-99R test, and as being at ‘Moderate’ risk of re-offending on the STABLE-2007 assessment. Dr.

Randall noted that combining these two, the respondent’s composite assessment places him in the ‘Below Average’ risk of reoffending category in comparison to other sexual offenders. Sentencing Judge’s Remarks

37. On the 15th of November 2024, the judge in the Court below passed sentence on the respondent. The sentencing judge noted the factual background of the case as described in evidence by D/Garda Prendergast.

38. The sentencing judge identified the relevant aggravating factors at play in this case as follows:

“The first and most obvious one is the very young age of the victims. It's also aggravating that he gave warnings to his victims not to tell anyone. That indicates some insight that he knew what he was doing was wrong. There is a significant disparity of the -- in age between [the respondent] and his female victim. There was a breach of trust. [The respondent] had access to the [named] farm by reason of being a trusted neighbour who was employed for casual labour by the children's father. The frequency and persistence of the abuse is an aggravating factor. The harm caused to the victims is significant, particularly in the case of [H.D.] who gave a victim impact statement. She set out in a very poignant and articulate way to the Court the devastating toll that the abuse had taken on her. She outlined the impact that the abuse had on her life and has continued on her life and in her relationships, particularly with her husband and her children. She feels -- and she should not have to feel this -- embarrassment and shame. Clearly, she has been seriously adversely affected by [the respondent’s] actions and has been left with physical effects, psychological and emotional scars.”

39. The sentencing judge identified a headline sentence of four years imprisonment on Count No’s 1 and 6, respectively. A headline sentence of one year and three months was identified for Count No 8; and a headline sentence of two years imprisonment was identified on Count No’s 11 and 26, respectively.

40. In relation to mitigation, the sentencing judge made the following remarks:

“The most important mitigating factor in this case is the plea of guilty albeit one which came very late in the day and resulted, because of its lateness, in requiring one of the victims to travel from her home on the continent and anticipate that she would have to give evidence and be subject to cross-examination. This was a matter that added further to her stress and as outlined by her in her victim impact statement.

Nonetheless, any guilty plea is a valuable one and merits mitigation as it clearly spares the victim the trauma of having to re-live the experiences of the abuse and of course spares the victim the necessity of having to testify in front of a jury of strangers and be cross-examined on their evidence.

[Defence Counsel] has pointed out the guilty plea … the guilty pleas that have been entered. He has pointed out the cognitive impairments and I have the benefit of the Forensic Psychological Service's report in that regard, the psychologist finding that [the respondent’s] overall cognitive ability is in the extremely low range of intellectual functioning and that his thinking and reasoning abilities are exceeded by 99% of adults in his age according to a particular scale of measurement referred to in the report. This intellectual challenge that [the respondent] faces is perhaps a reason as to why he is expressing no remorse or apology to his victims despite his guilty plea in relation to these counts. On the other hand, the psychologist states that he enjoys social interactions and positive relationships and a relatively strong social circle with his neighbours who help him with daily living needs and regularly check in on him. The psychologist raises as an issue his lack of concern for others and the fact that he has displayed some signs of hostility and resentment relating to the charges.”

41. The sentencing judge imposed a sentence of three years imprisonment on Count No’s 1 and 6; a sentence of nine months’ imprisonment on Count No 8; and a sentence of one year and six months imprisonment on Count No’s 11 and 26. The sentencing judge then considered whether to impose these sentences concurrently or consecutively, and he considered the cases of People (DPP) v. M.J. [2022] IESC 50 and People (DPP) v. M.J.

(No. 2) [2023] IESC 4 in this regard.

42. Ultimately, the sentencing judge imposed the sentences on Count No’s 11 and 26 to be concurrent inter se, with Count No 8 imposed consecutively upon their lawful expiration.

Further, the sentences imposed on Count No’s 1 and 6 were made concurrent inter se, and consecutive upon the lawful expiration of the sentence imposed on Count No 8. The total sentence imposed on the respondent was 5 years and 3 months imprisonment, which was backdated to the 19th of July 2024 to account for time spent in custody.

Submissions on Appeal

Director’s Submissions

43. The Director has submitted that the effective sentence of 5 years and 3 months imprisonment to reflect 26 serious offences is inadequate and a significant departure from what could be considered appropriate sentences. The Director outlines that the within offending was targeted, persistent and occurred when each victim was alone.

44. It was submitted that it was an error in principle for the sentencing judge to place this offending at the mid-range on a scale of gravity. It was asserted that the protracted nature of the abuse which included penetration and degradation, disparity in age, breach of trust, and the serious emotional damage inflicted dictate that the offending be appropriately placed towards the high range on a scale of gravity for indecent assault.

45. The Director submitted that the sentencing judge failed to have adequate regard to significant aggravating factors in this case, listing the following:

a) “The offences were committed when the young child victims were alone in secluded locations;

b) The offending was pre-meditated and persistent;

c) The offending occurred over an extremely long period of time and involved 3 separate young child victims;

d) The offender was working for the victim’s family and the abuse was an egregious breach of trust;

e) There was a significant disparity in age between the victims and the offender;

f) The extraordinary damage caused to the victims.”

46. The Director also notes that the sentencing judge’s pronouncement in his sentencing remarks that he was, “taking into account in the headline sentencing him intellectual challenges and lack of maturity and but for these the headline sentences would have been higher”. The Director argues that this was an error in principle as this could only conceivably have gone to mitigation and in the particular circumstances of this case could not even amount to that.

47. Further, the Director contends that the sentencing judge misplaced emphasis on the respondent’s guilty pleas and that these pleas were diluted by the fact that there was an absence of remorse; there was no apology to the victims; they were entered on a trial date upon which one of the victims had travelled from overseas to give evidence; and close to four years had elapsed since the respondent was returned for trial.

Respondent’s Submissions

48. The respondent submitted that the sentencing court gave due deference in its judgment to the aggravating factors and fully appreciated and applied the significance of each.

49. The respondent outlined that the sentencing judge was aware of the stage at which the guilty pleas were entered. It is argued that the reduction in the headline sentence did not represent undue leniency, and the reduction was appropriate having regard to the particular facts of the case.

50. Further, it was outlined by counsel for the respondent that when considering the totality of the sentence, the sentencing judge imposed a sentence with no suspended element to it. The sentencing judge considered that given the absence of remorse as noted in the psychologist’s report, no suspended element was warranted. The respondent contended that this approach by the sentencing judge was in line with the decision of this court in People (DPP) v. D.H. [2023] IECA 203. The respondent submitted that while some differing considerations may apply in the instant case, the approach of the sentencing judge was not indicative of undue leniency.

51. Counsel for the respondent suggested that the sentencing judge had appropriately balanced relevant considerations in relation to sentence where the offending had commenced during the respondent’s minority and was committed by an intellectually challenged individual.

52. Additionally, the respondent submitted that the offences had been placed correctly on the scale of potential penalties by the sentencing judge, having regard to comparators. The respondent relied on the following cases in support of this, People (DPP) v. D.H.; People (DPP) v. C.R. [2023] IECA 136; and People (DPP) v. P.R. [2019] IECA 150.

Court’s Analysis & Decision

53. This hearing of this undue leniency review was held on the same day, and before the same panel, as the hearing of another undue leniency review in a case also involving indecent/sexual assault offences, i.e., the case of the People (DPP) v. G.N. [2025] IECA

254. In both cases the counsel involved had contended in arguendo that the respective sentencing judges at first instance had incorrectly located the offending in the “midrange”, prompting the panel presider to point out to counsel in each case that, in the case of sexual assault/indecent assault type offences, and unlike in the case of rape and certain other offences, no sentencing guideline judgment had been promulgated, nor has the Judicial Council pursuant to its statutory remit issued any sentencing guidance to date applicable to sentencing for these offences. Accordingly, no sentencing bands or subranges had ever been set for sexual assault/indecent assault type offences, either by an appellate court or by the relevant statutory guideline -making body. (While sentencing scholarship tends to use the phrase “rule-making body” in the context of the formulation and promulgation of sentencing guidance, we are using the phrase “guideline making body” in this instance to distinguish what we are referring to from bodies such as court rules committees, eg., the Superior Courts Rules Committee). That being so, the applicant’s contention that the case was misplaced in the “mid-range” was necessarily misconceived in so far as no such sub-range existed at that point. That would not, however, prevent the Court from addressing the contention that the sentencing judge had erred in purporting to locate the gravity of the offending in a putative “mid-range”, or from considering the more generic underlying complaint in each of the s. 2 applications before it, that the gravity of the offending in each case was incorrectly assessed.

54. It was indicated to the parties that the Court would in the circumstances presenting possibly avail of the opportunity to offer guidance in one of the two cases with which it was concerned at that point, for the future assistance of judges, practitioners, accused and other interested persons, concerning the assessment of gravity and the setting of appropriate headline sentences in relation to sexual assault/indecent assault type offences. This was done in People (DPP) v. G.N., cited above, in which case a sentencing guideline judgment was promulgated on the 20th of November 2025. The G.N. case offers guidance for the assistance of Judges who are sentencing in cases of sexual/indecent assault and categorises cases according to their gravity as falling into either a low range, mid-range or upper range. Indicative examples of such factors as might result in a case being placed in a particular sub-range are provided, together with illustrative precedential material. In the circumstances this Court’s approach to the issues arising in the present case follows the approach commended in that guideline judgment.

55. The law as to undue leniency reviews is by this stage well established and it was not the subject matter of any controversy in this case. What is required to be demonstrated in order for the applicant to succeed, as we reiterated in the G.N. guideline judgment at paragraph 9, is not just that the sentence at first instance should have been lenient, but rather that it was so lenient as to be a clear divergence from the norm.

56. In the absence of a sentencing guideline judgment, or sentencing guidelines issued by the Judicial Council, a Judge may be assisted is ascertaining what constitutes “the norm” if he/she can discern a trend or trends in sentencing practice in so far as it concerns the offence at issue from an ad hoc consideration of a reasonably representative sample of appropriate sentencing comparators (albeit that some care and caution needs to be exercised in doing so, for reasons we have previously elaborated upon). However, that is not always possible. In People (DPP) v. Mahoney [2016] IECA 27 we further addressed how “the norm” might be determined in a situation where there is no existing guidance, and there are also no comparators (e.g., as might be true in the case of a completely new offence), or an insufficiently representative compendium of comparators, from which a trend or trends in sentencing for the offence at issue might be reliably discerned. In that case we stated:

“39. Of course, in the absence of comparator judgments, there is no norm in the narrow sense of that word against which to measure the sentence imposed in this case. …

40. However, we do not consider that in referring to a divergence from the norm, the Supreme Court, in The People (Director of Public Prosecutions) v. McCormack, intended that the word norm should applied and understood in the narrow sense of being a usual situation referable to comparators. Rather, we believe the norm spoken of refers to what might be predicted to be the result, within a reasonable margin of appreciation, of a faithful application to the facts of the individual case of the appropriate sentencing principles, whether or not there are any useful comparators.”

57. The sentencing judge was at the disadvantage of neither having the benefit of a guideline judgment nor guidelines promulgated by the Judicial Council. Moreover, he was referred to only a small number of comparators on both sides, rendering apposite to this case certain remarks made by this Court previously in People (DPP) v. K.C. [2019] IECA 126.

We commented in that case:

“93. … We agree with the respondent that the two cases produced by the appellant as comparators (or three if the O’Regan case is included) are of little assistance. Direct comparisons are largely meaningless, as no two cases are sufficiently similar for that to represent a legitimate exercise. Moreover, while a representative series of comparators can legitimately be presented as indicating a trend in sentencing, to rely in that regard on just two or three cases will in many cases be insufficiently representative for that to be a meaningful exercise. There has to be a representative sample. If the offence(s) concerned was/were uncommon, and two or three cases was all that could be found following diligent research, such a small sample might be acceptable. However, that is not the case here. It is a regrettable fact that indecent/sexual assault and rape offences, particularly in a situation where the abuser has been a family member and/or in a position of trust, have been, and seemingly continue to be, very common and there are numerous judgments dealing with sentencing for this type of offending. In saying this we are not to be taken as discouraging the use of comparators. On the contrary, we unreservedly welcome the assistance that proper recourse to comparators may provide. The point we wish to make is that it is important that they are used correctly and that they are not relied upon inappropriately.”

58. All of that having been said, at this stage, both for the purposes of this review, and for the purposes of any re-sentencing of the respondent should that be required, any need to rely primarily on ad hoc guidance from case comparators, or to have to attempt to approach the issues arising from first principles, is obviated because we now have the benefit of the recent appellate sentencing guideline judgment of this Court in People (DPP) v. G.N.

59. In assessing the gravity of the respondent’s offending by reference to his culpability and the harm done by him, the standout features of this case are that the indecent assaults with which we are concerned were not in any way fleeting, or of a once off variety. The conduct complained of was repeated on numerous occasions, in the case of each of the victims, and the representative counts to which he pleaded were part of a series of such offences committed over protracted periods of time (eight incidents in different locations over circa 5 years in the case of the offences against H.D., three incidents in the course of a single year in the case of the offences involving P.M.; and numerous incidents in three different locations over 3 to 4 years in the case of the offending involving A.M.).

60. Further, the majority of the indecent assaults involving H.D. were digitally penetrative of her vagina under clothing, and in the case of all three victims there was genital touching both over and under clothing and self-masturbatory action by the respondent, which the victims found to be degrading and distressing.

61. The offences were perpetrated against several members of the same family in circumstances where the respondent had been granted access to their home, and their appurtenant farm, in the capacity of a trusted neighbour and casual farm employee. He exploited his position as both neighbour and employee in order to abuse each of the victims and there was therefore a significant breach of trust.

62. The victims were all pre-teens when they were indecently assaulted, whereas the respondent was considerably older than them in each case. In the case of H.D., the abuse began when she was 6 or 7 years of age, in the case of P.M. it all occurred when he was 7 years of age, and in the case of A.M. it began when he was 6 or 7 years of age. The respondent was 17 years older than H.D., approximately 10 years older than P.M. and approximately 8 years older than A.M. The respondent was accordingly fully an adult when he began abusing H.D. and was in his mid to late teens when he began abusing P.M. and A.M. respectively. The age differential between perpetrator and victim was in each case cruelly exploited.

63. A degree of violence accompanied some of the indecent assaults of H.D. where the respondent grabbed the victim’s hand to use it to masturbate himself and when he lay on top of her, placed his hand over her mouth and digitally penetrated her. Both P.M. and A.M. also described the respondent, who was clearly much physically larger than his victims, lying on top of them and rubbing himself up and down until he ejaculated.

64. Further, there was ostensibly a degree of pre-planning in as much as the respondent’s modus operandi was to commit his offending only when his victims were away from adults and in secluded locations.

65. Finally, evidence was received by the sentencing judge in the form of H.D.’s victim impact statement to the effect that profound psychological trauma and harm, which persists to this day, was caused to H.D. in consequence of her being indecently assaulted by the respondent. While there was no specific evidence as to the impact of the respondent’s offending on P.M. and A.M., respectively, we must have regard to s. 5(4) of the Criminal Justice Act 1993 as substituted by s. 4 of the Criminal Procedure Act 2010, which provides:

“Where no evidence is given pursuant to subsection (3), the court shall not draw an inference that the offence had little or no effect (whether long-term or otherwise)

on the person in respect of whom the offence was committed or, where appropriate, on his or her family members.”

66. We think that, on the contrary, an inference may fairly be drawn in the circumstances of this case that both P.M. and A.M. also suffered profound and long-lasting psychological trauma and harm in consequence of being indecently assaulted by the respondent in the manner described in evidence.

The Headline Sentences

67. It is important to record at the outset that a factor, applying in the case of Count No’s 8,

11 and 26 only, was that the respondent was a minor himself when he committed those offences. As outlined in People (DPP) v. T.D. [2021] IECA 289, sentencing scholarship recognises that it is vital that a sentencing court has regard to the maturity and developmental reality of the offender in question.

68. Further, there was evidence from a psychologist to the effect that the respondent suffers from an intellectual disability with an extremely low range of intellectual functioning in which his overall thinking and reasoning abilities are exceeded by 99% of persons of his own age.

69. We have alluded to these matters because the sentencing judge, in setting his headline sentences, stated:

“I am taking into account in the headline sentencing his intellectual challenges and lack of maturity and but for these the headline sentences would have been higher”.

70. It bears commenting upon in that regard that, strictly speaking, for the sentencing judge to properly take account of these factors in setting his headline sentences, he needed to be satisfied that they were factors bearing on the respondent’s culpability, because a headline sentence is determined on the basis of a synthesis of culpability considerations and the harm done. The factors referenced would not have impacted the harm done, but they might have impacted his ability to appreciate the full degree to which his victims could or would be harmed by his offending conduct. If that was indeed the case, it would potentially have a bearing on his culpability. If, conversely, his intellectual challenges and maturity did not impact his culpability, but were otherwise potentially relevant simply as personal circumstances of which some account should be taken in sentencing, the appropriate time to make due allowance for them was in the second stage of sentencing.

71. It is perhaps implicit in the sentencing judge’s quoted remark that he regarded these factors as being relevant to culpability. Was he correct to do so? We think not in the circumstances of the case, and that to have done so was an error of principle that was likely to impact adversely on the appropriateness of any headline sentences nominated.

The psychological evidence received by the sentencing judge did not go so far as to make a definite link between his maturity and cognitive abilities such as to entitle the sentencing judge to have treated him as being of reduced culpability, which he ostensibly did.

72. The sentencing judge at first instance was properly apprised of the potentially applicable penalties, namely that the offences the subject matter of Counts No’s 1 and 6 (where H.D. was the victim) carried up to 10 years’ imprisonment; the offence the subject matter of Count No 8 (where P.M. was the victim) carried up to 2 years’ imprisonment; and the offences the subject matter of Counts No’s 11 and 26 (where A.M. was the victim) carried up to 5 years’ imprisonment.

73. In circumstances where different maximum penalties applied in respect of the offending against different victims, there are particular considerations to be borne in mind as outlined by Charleton J., giving judgment for this Court in G.N., at paragraph 19 of the judgment:

“19. In this Court offering guidance, it is appropriate to dispose of three factors. Firstly, a sentence is limited by the maximum term of imprisonment provided for. But, that does not mean that where the penalty is wholly and obviously inadequate for what has occurred, that variations away from the worst activity needs to attract a fraction of the maximum penalty. Where the penalty is inadequate, where it clearly was for indecent assault until the maximum sentence was reset, it is the offending and the harm to the victim which attracts the penalty and not a division of the sentence into upper, middle range and lower range punishments. That same principle must apply where the maximum penalty was 5 years imprisonment.

Secondly, by increasing the penalty, the Oireachtas has exercised its exclusive lawmaking power under Article 15.2 of the Constitution and the democratic mandate under Article 5 requires the courts to recognise that the people’s representatives regard such offences more seriously, while at the same time abiding by the principle that only a just sentence should be imposed; Ellis v Minister for Justice and Equality [2019] IESC 30, [2019] 3 IR 511, [2019] 2 ILRM 420. Thirdly, while the penalties have risen and fallen, the Court is not here always dealing with a 10- year maximum regime of imprisonment in the cases cited as examples or, where under 17 years, a 14-year maximum regime. But, it is that maximum on which guidance is most needed because of the variability of the forms and gravity of sexual assault. That 10-year maximum, and, for victims under 17, that 14-year maximum is therefore what this judgment addresses.”.

74. We think that in light of the co-existence and cumulative effect of the numerous aggravating circumstances which we have identified, we are in no doubt that this case required the nomination of a headline sentence in the upper range as described and discussed in paragraphs 23 to 28 inclusive of this Court’s sentencing guideline judgment in People (DPP) v. G.N. In the case of Counts No’s 1 and 6, where the applicable maximum potential sentence was 10 years, the upper range would have extended from 6 years to 10 years. The sentencing judge at first instance located this offending within a putative “mid-range” or “middle range”, the precise parameters of which were unspecified. However, he went on to nominate a headline sentence of 4 years’ imprisonment as being appropriate, and this was clearly an error of principle in circumstances where the headline sentence required to be located at some point between

6 years and 10 years on the scale of potential penalties, i.e., within what has now been designated as the “upper range”.

75. In so far as the offending in Count No 8 and involving P.M. was concerned, there were fewer incidents, and the duration of abuse was shorter than in the case of the offending against other victims. Moreover the abusive conduct, although degrading and violatory was not penetrative as was true in the case of the offending against H.D. Be that as it may, there were still multiple aggravating factors and we are of the belief that this was also at least high end of the mid-range offending, or low end of the upper range offending, in terms of its gravity, according to the metrics discussed in G.N. appropriately adjusted for the available penalty range, and bearing in mind the caveat in regard to the application of sentencing sub-ranges articulated by Birmingham P. in People (DPP) v.

Casey and Casey [2018] IECA 121, at [49], where he said:

“Again, the Court recognises that there is no clear blue water between the ranges. Often the most that can be said is that an offence falls in the upper mid-range / lower higher range. In many cases whether an offence is to be labelled as being at the high end of the mid-range or at the low end of the high range for an offence is often a fine call. The judge’s legitimate margin of appreciation may well straddle both. In that event, how it is labelled may in fact not impact greatly on the sentence that will ultimately be imposed.”

76. However, the maximum available penalty in regard to Count No 8 is just 2 years, which we believe is inadequate to properly address what occurred. While a sentencing court cannot exceed the maximum term of imprisonment provided for, we consider that it would be wrong in the circumstances of this case for any court to nominate a headline sentence for this offence of less than 2 years imprisonment.

77. The sentencing judge at first instance nominated a headline sentence of one year and three months for this offence, which in our view was simply too low and that was a further error of principle.

78. Moving then to Counts No’s 11 and 26, involving the victim A.M., there were again somewhat fewer incidents than in the case of the offending involving H.D., and they stretched across 3 to 4 years, as opposed to 5 years in H.D.’s case. Again, the abusive conduct while degrading and violatory, was not penetrative as it was in H.D.’s case. We are again of the belief that this was also at least high end of the mid-range offending, or low end of the upper range offending, in terms of its gravity, according to the metrics discussed in G.N. adjusted for the available penalties, and bearing in mind Birmingham P.’s caveat as previously referenced. In this instance the maximum potential penalty was, in each instance, imprisonment for 5 years. We believe that a headline sentence in the 3-

4 year bracket would have been appropriate in the circumstances of the case. However, the sentencing judge at first instance nominated a headline sentence of two years on each of these counts, which in our view was too low, and once again that was an error of principle.

Discounting for Mitigation

79. Errors committed during the first stage of a sentencing exercise (i.e., assessing the gravity of offending conduct) will, even if the remainder of the sentencing is conducted flawlessly, carry through to the second stage (i.e., the affording of due allowance for mitigating and personal circumstances) and in many, perhaps even most, cases that will infect and adversely impact the appropriateness of any final sentence. However, it does not follow automatically from the mere fact that an incorrect headline sentence was nominated that the sentence ultimately imposed will have been unduly lenient so as to justify intervention by this Court. It sometimes happens that adjustments made in the second stage of sentencing, whether correctly made or not, can compensate to a greater or lesser extent for errors made in the first stage. It is therefore necessary to go further and consider the sentences ultimately imposed before reaching a final decision of whether the sentences at first instance require to be quashed for undue leniency.

80. Moreover, in this case, the applicant, in addition to complaining about the headline sentences imposed at first instance, also complains that too much allowance was made by the sentencing judge for mitigation and personal circumstances.

81. The most significant mitigating factor was that the respondent pleaded guilty. His guilty pleas were entered relatively late in the day, and were not accompanied by expressions of remorse or apology, and on account of those factors should only have attracted a modest, as opposed to a generous, weighting. The pleas were in effect the only mitigation of which account was taken in the second stage of the process because the sentencing judge had already taken account of the respondent’s age at the time of offending, his level of maturity and his cognitive abilities in setting his headline sentences.

82. In the case of Count No’s 1 and 6, the sentencing judge discounted by 25% from his nominated headline sentence. In the case of Count No 8, he discounted by 40% from his headline sentence and in the case of Count No’s 11 and 26, he again discounted by 25%.

The reason for the discrepancy in the allowance afforded for pleading guilty between Count No 8 and the other counts is not pellucid. It is wholly unexplained. However, quite apart from that, given that the only factor being considered was the fact that the respondent had pleaded guilty, and given the lateness of those guilty pleas, and the absence of any accompanying evidence to suggest that they represented an earnest of true remorse, as opposed to being strategic and self-serving, we consider that the allowance of a 25% discount from the headline sentences, much less a 40% discount, cannot be justified and was an error. In our belief, an appropriate level of allowance would have been in the order of 15% on all counts in the circumstances of the case.

Were the ultimate sentences unduly lenient?

83. We have considered the ultimate sentences imposed in this case, and are satisfied that due to the various errors which we have identified they represent in each case a clear divergence from the norm, and were on that account, each unduly lenient.

84. Further, and for completeness, in circumstances where the applicant’s grounds include the generic complaint that “the sentencing judge imposed a sentence (sic) which did not adequately reflect the gravity of the offence (sic) committed”, we have further considered how the overall sentencing package was structured, including the sentencing judge’s recourse to a mix of concurrent and consecutive sentencing, his consideration of totality, and the proportionality of the overall aggregate sentence. We do not feel it necessary to comment specifically on how the judge structured his sentences, save to say that it was manifestly a case in which some level of consecutivity could justifiably have been applied.

Moreover, there was no ostensible error in the sentencing judge’s approach to sentence structuring. It will suffice in the circumstances to say that because the individual component sentences used in structuring the overall sentencing package were themselves unduly lenient, the ultimate aggregate sentence was also unduly lenient.

85. In the circumstances it is necessary to quash the sentences imposed at first instance and to re-sentence the respondent. Re-sentencing

86. We nominate headline sentences of 8 years’ imprisonment in case of Counts No’s 1 and 6, respectively; 2 years’ imprisonment in the case of Count no 8; and 3 years and 4 months (40 months) imprisonment in case of Counts 11 and 26, respectively.

87. The mitigating factors for which allowance must be made in respect of all of the offences include the fact that the respondent pleaded guilty (albeit not at the earliest opportunity);

his low level of intellectual functioning; and, following the approach in People (DPP) v P.H.

[2007] IEHC 335, the desirability of making some modest allowance for the respondent being of good conduct over decades since ceasing his offending.

88. In addition, some additional allowance must be made for youth and immaturity in respect of the offending the subject matter of Counts No’s 8, 11 and 26 only; in as much as the respondent was himself a minor when he committed these offences.

89. Instinctively synthesising these considerations we will in principle discount by 25% for mitigation in the case of Counts No’s 1 and 6; and by 33.3% in the case of Counts No’s 8,

11 and 26.

90. Applying these allowances (and where necessary rounding up or down to the nearest whole month), we impose post-mitigation sentences of 6 years’ imprisonment on Counts No’s 1 and 6, respectively; a post mitigation sentence of 1 year and 4 months (16 months) on Count No 8; and post-mitigation sentences of 2 years and 3 months’ imprisonment (27 months) on Counts No’s 11 and 26, respectively.

91. We agree with the sentencing judge at first instance that a mix of concurrent and consecutive sentences is required in the circumstances of this case, to take account of the fact that there were three separate victims.

92. Accordingly the sentences on Counts No’s 1 and 6, respectively are to be served concurrently inter se, and are to date from 19/07/2024.

93. The sentence on Count No 8 is to date from the expiry of the sentences on Counts No’s 1 and 6 , respectively.

94. Further, the sentences on Counts No’s 11 and 26, respectively, are to be served concurrently inter se, and are to date from the expiry of the sentence on Count No 8.

95. The cumulative total of the post mitigation sentences, before any consideration of the issue as to whether any adjustment is required by virtue of the totality principle, is therefore 9 years and 7 months, calculated as follows:

6 years + 1 year and 4 months + 2 years and 3 months = 9 years and 7 months.

96. We consider that in the circumstances of this case some adjustment to the overall cumulative sentence is required in application of the totality principle, and so in order to render a proportionate overall cumulative sentence, we consider that the figure of 9 years and 7 months’ imprisonment, should be reduced to one of 8 years’ imprisonment. To give practical effect to this, the post-mitigation sentences on Counts No’s 1 and 6 respectively are each accordingly reduced from 6 years’ imprisonment to 4 years and 5 months’ imprisonment.

97. The adjusted final figure is therefore one of 8 year’s imprisonment, calculated as follows:

4 years and 5 months + 1 year and 4 months + 2 years and 3 months = 8 years.

98. Finally, in circumstances where there has been no evidence of remorse, and where there is no evidential foundation to justify a part suspension in furtherance of the objective of rehabilitation, we do not propose to suspend any portion of the sentences now being imposed.